There Is No 5-Second Rule for the First Amendment, Ferguson

Tear gas, rubber bullets, and assault weapons; free speech zones, gags, and press pens: This is the arsenal of the police state. Some of these tactics are physical. The other ones—all the more pernicious for their quiet coercion—impose a veil of silence over the actions of law enforcement. And each of these weapons has been unleashed on the people of Ferguson, Missouri, since the killing of Michael Brown.

In the first few nights of protest, Ferguson and St. Louis County police responded with a truly inconceivable show of force. Officers suited up in DHS-funded military hand-me-downs, outfitted with goggles, machine guns, sniper rifles, riot gear and gas masks. Distressing warzone-like images flickered into the public consciousness: photos of armed police cohorts pointing loaded automatic weapons at citizens with their hands in the air, women and children’s faces streaming with tear gas and milk and white officers targeting black protesters like it’s Selma circa 1964.

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The message was clear: The public is the enemy. And as we the people started getting that message, Ferguson starting working harder to shoot the messengers.

Police repeatedly ordered protesters to turn off cameras and cell phones recording law enforcement. In response, the ACLU of Missouri had to go into court to seek an emergency agreement reminding the police that photographing them is a constitutionally protected right. Roving SWAT teams, perplexingly, raided a McDonald’s and arrested two journalists engaged in the suspicious act of recharging their phones. Police aimed tear gas canisters directly at members of the press. A local news crew caught police riding up afterwards and disassembling another crew’s media equipment.

Then came more systemic approaches to shutting down the speech of the public and the press. First: a nighttime curfew, applied to a broad area, whose details were obscure and seemingly applied ad hoc on the ground. Of the seven people arrested that night, three claim to have been on their own driveway. Of course, since journalists were subject to the curfew, we don’t have a lot of objective facts about what happened in those wee hours.

That curfew only lasted a few days. It was then replaced by a “no standing” rule of dubious origin and authority, under which police threatened the arrest of anyone who stood still for more than 5 seconds, day or night. That also included press. CNN’s Don Lemon was pushed along the sidewalk on live television, after being told by authorities to be exactly where he was. As he rightly said to his audience: “Imagine what they are doing to people when [sic] you don’t see on national television, the people who don’t have a voice like we do.”

However, reporters were allowed to stand still—so long as they stayed in the “press pen,” a designated space so far off from the action between the cops and the protesters that reporters who tried to witness anything of consequence were tear gassed. And the police didn’t hesitate to show they meant business, arresting Getty photographer Scott Olson when he strayed. Like other reporters arrested, he too was promptly released without a report or charges. The point of these repeat press arrests appears to be preventing accountability, not protecting public safety.